U.S. v. Harley
| Decision Date | 16 July 1982 |
| Docket Number | 81-2173,Nos. 81-1510,s. 81-1510 |
| Citation | 682 F.2d 1018,221 U.S. App. D.C. 69 |
| Parties | , 11 Fed. R. Evid. Serv. 64 UNITED STATES of America v. Stanley HARLEY, Appellant. UNITED STATES of America v. Stanley HARLEY, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Criminal No. 81-0006).
R. Kenly Webster, Washington, D. C. (appointed by this Court), for appellant.
Helen M. Bollwerk, Asst. U. S. Atty., Washington, D. C., with whom Stanley S. Harris, U. S. Atty., John A. Terry, Michael W. Farrell and James R. Spencer, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before ROBB and BORK, Circuit Judges, and GORDON, * Senior District Judge for the Western District of Kentucky.
Opinion for the Court filed by Circuit Judge BORK.
Stanley Harley appeals his conviction for distribution of a controlled substance, heroin, in violation of 21 U.S.C. § 841(a)(1) (1976), and the district court's denial of his motion for a new trial. We affirm.
During the mid-morning hours of October 29, 1980, Metropolitan Police Detective George F. Clannigan, assigned as an undercover narcotics officer, drove to 3930 Wheeler Road, S.E., Washington, D.C., to attempt a heroin purchase. Clannigan parked in a parking lot in front of that address and walked towards the house. Harley, whom Clannigan did not know, came down the steps from that address, walked twenty feet towards Clannigan, stopped the detective, and asked him what he wanted. Clannigan then negotiated the purchase of $50 worth of heroin and gave Harley that amount in cash. Harley re-entered 3930 Wheeler Road and was out of Clannigan's sight momentarily. Returning to the courtyard, Harley gave Clannigan a small plastic bag containing white powder. Clannigan took the package and left. These two encounters lasted approximately a total of 17 seconds.
From a nearby surveillance post, Officer George Taylor and Detectives George Green After the purchase, Clannigan returned to the stationhouse. Investigator David Hayes performed a field test of the powder and received a positive reaction, indicating that the powder was heroin. Hayes also showed Clannigan 10 to 12 photographs of black males in their twenties and thirties known by the police to frequent the 3930 Wheeler Road area. Clannigan identified Harley as the person who had sold him the powder.
and John Goodspeed watched the entire transaction, Taylor using binoculars part of the time. Goodspeed filmed the transaction with a camera equipped with a zoom lens.
Harley was charged in a two-count indictment with the distribution of, and the possession with intent to distribute, heroin. At trial, the government introduced the videotape and the testimony of Clannigan, Hayes, Taylor, and Goodspeed. Harley, the only witness for the defense, maintained that he had not sold the heroin. The trial court instructed the jury to consider the distribution charge first and to consider the possession charge as a lesser included offense only if it should vote to acquit Harley of distributing heroin. After deliberating, the jury found Harley guilty of distribution.
We turn next to the legal issues raised on this appeal.
During his cross-examination of Investigator Hayes, Harley asked the location of the apartment used for the police surveillance post. The district court sustained the government's objection to this inquiry. Harley claims here that this ruling violated his rights under the Sixth Amendment's Confrontation Clause because the information would have shown the difficulties the officers using the post would have had in accurately identifying the seller from their vantage point. We hold that the district court did not err by sustaining the government's objection.
In United States v. Green, 670 F.2d 1148 (D.C.Cir.1981), this court, relying upon an analogy to the well-established informer's privilege, adopted a qualified surveillance location privilege. Green approved the withholding of the location of a police surveillance post at a suppression hearing but reserved the question of the privilege's existence at trial. Id. at 1157 n.14. We now hold that the surveillance location privilege, like the informer's privilege, applies at trials and that it, too, is to be applied through a balancing test controlled by "the fundamental requirements of fairness." Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957).
A defendant seeking to learn the location of a police surveillance post should ordinarily show that he needs the evidence to conduct his defense and that there are no adequate alternative means of getting at the same point. The degree of the handicap he establishes must then be weighed by the trial judge against the policies underlying the privilege. This is necessarily a somewhat ad hoc balancing process so that, as Roviaro said, "no fixed rule with respect to disclosure is justifiable." Id. at 62, 77 S.Ct. at 628.
We have no difficulty in concluding that such a balancing test sustains the application of the surveillance location privilege here. Whether or not use of this particular surveillance post has been abandoned, as Harley suggests, so that the safety of the police officers using it is not involved, the safety of the cooperating apartment owner or tenant remains a relevant consideration as does the willingness of other citizens to cooperate with the police in this fashion in the future. These, as Green pointed out, are weighty considerations supporting the privilege.
Harley, on the other hand, made no attempt to demonstrate a need for the evidence or that alternative methods were unavailable.
The only issue at trial was identification. Detective Clannigan, the government's first witness, positively identified Harley as the man who sold him heroin. The second witness This would be sufficient to sustain the trial judge's ruling. But there is an additional factor.
Investigator Hayes, had never been in the apartment used for observation but knew the area. On cross-examination, Harley elicited from Hayes the facts that the surveillance post was between 20 and 30 yards from the courtyard at 3930 Wheeler Road and was approximately 10 to 12 feet above street level. The government objected, and was sustained, only when Hayes was asked to state the floor on which the apartment was located. Harley offered no reason why that information might be important. Officer Taylor and Detective Goodspeed, who had observed the transaction from the apartment, were not asked by Harley about their ability to see.
The government showed the jury the videotape Goodspeed made of the heroin...
To continue reading
Request your trial
-
U.S. v. Van Horn
...at 627-28. The District of Columbia Circuit has applied the Roviaro privilege to surveillance locations. See United States v. Harley, 682 F.2d 1018, 1020-21 (D.C.Cir.1982); United States v. Green, 670 F.2d 1148 (D.C.Cir.1981). In Green, a police officer using binoculars observed the defenda......
-
United States v. Payden
...inadequate evidence. Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 408-09, 100 L.Ed. 397 (1956); United States v. Harley, 682 F.2d 1018, 1021 (D.C.Cir.1982); United States v. Blitz, 533 F.2d 1329 (2d Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 79 (1976); Unit......
-
U.S. v. O'Neill
...v. Fernandez, 797 F.2d 943, 952 (11th Cir. 1986); United States v. Van Horn, 789 F.2d 1492, 1508 (11th Cir.1986); United States v. Harley, 682 F.2d 1018, 1020 (D.C.Cir.1982). Additionally, Miller has failed to make any kind of substantial showing that his need for the recording equipment ou......
-
U.S. v. Cintolo
...Van Horn, 789 F.2d 1492, 1507-08 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 190, 93 L.Ed.2d 123 (1986); United States v. Harley, 682 F.2d 1018, 1020 (D.C.Cir.1982). The Eleventh Circuit applied the privilege specifically to the placement of electronic surveillance We hold that the ......
-
§ 42.03 Surveillance Location Privilege
...recognized this privilege,35 while others have rejected it.36 --------Notes:[30] 670 F.2d 1148 (D.C. Cir. 1981).[31] Id. at 1155.[32] 682 F.2d 1018 (D.C. Cir. 1982).[33] 986 F.2d 541, 542-44 (D.C. Cir. 1993).[34] See also United States v. Jimenez, 464 F.3d 555, 561 (5th Cir. 2006) ("[W]hen ......
-
§ 42.03 SURVEILLANCE LOCATION PRIVILEGE
...have recognized this privilege,35 while others have rejected it.36--------Notes:[30] 670 F.2d 1148 (D.C. Cir. 1981).[31] Id. at 1155.[32] 682 F.2d 1018 (D.C. Cir. 1982).[33] 986 F.2d 541, 542-44 (D.C. Cir. 1993).[34] See also United States v. Jimenez, 464 F.3d 555, 561 (5th Cir. 2006) ("[W]......